‘Negatively Impacted’
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

Managers of the biggest hedge funds and private equity funds have been shy about getting in a public debate with powerful members of Congress who want to raise their taxes. But now two of the funds have filed for public offerings with the Securities and Exchange Commission, which means they have a legal obligation to tell potential shareholders what the tax increase would mean to their potential investment. The result is language that is illuminating for those of us who think government should aim to encourage successful businesses in New York City and in America, rather than devise ways to hurt them or punish them for their successes.
The SEC filing for Och-Ziff Capital Management Group LLC, which is based at 9 West 57th Street in Manhattan, tells the story like this: “Members of the United States Congress have introduced legislation that would, if enacted, preclude us from qualifying for treatment as a partnership for U.S. federal income tax purposes under the publicly traded partnership rules. … We may determine not to proceed with this offering if our ability to qualify as a partnership for U.S. federal income tax purposes remains uncertain, or if any other legislative or executive branch action occurs which would materially affect our ability to move ahead with this offering.”
The Och-Ziff filing refers to tax increases introduced by Senators Grassley and Baucus and not only by Congressmen Levin and Welch but also by New York City’s own Charles Rangel. The filing warns: “If any version of these legislative proposals survives the legislative and executive process in its proposed form and were to be enacted into law, … Class A shareholders would be negatively impacted because we would incur a material increase in our tax liability as a public company from the date any such changes became applicable to us, which could result in a reduction in the value of our Class A shares.”
Och-Ziff’s founder and chief executive, Daniel Och, has donated $55,200 in the past two years to the Democratic Senatorial Campaign Committee. He also last year gave $26,700 to the Democratic Congressional Campaign Committee. It will be interesting to see if the Democrats Mr. Och helped elect leave his potential shareholders “negatively impacted.”
Och-Ziff’s neighbor in 9 West 57th Street, KKR & Co. LLP, warns in its SEC filing under “investment risks” that “members of the U.S. Congress have introduced legislation that would, if enacted, preclude us from qualifying for treatment as a partnership for U.S. federal income tax purposes under the publicly traded partnership rules. Separately, members of the U.S. Congress have introduced legislation that would, if enacted, treat income received for performing investment management services as ordinary income received for the performance of services, which would also preclude us from qualifying for treatment as a partnership for U.S. federal income tax purposes. If any of these pieces of legislation or any similar legislation or regulation were to be enacted and apply to us, we would incur a material increase in our tax liability, which could result in a reduction in the value of our common units.”
KKR’s co-chairman, Henry Kravis, tends to back Republicans, but he has over the years given $6,000 to Senator Schumer. The other co-chairman of KKR, George Roberts, who is based in California, gave $14,000 in 2004 to the Democratic Congressional Campaign Committee. We’ll whether Mr. Schumer and Chairman Rangel turn around and make KKR “incur a material increase” in its tax liability.
No one, so far as we can tell, is against having Messrs. Och, Kravis, and Roberts pay their fair share of taxes. But the rich already shoulder a huge share of the tax burden in America and in New York. Increasing taxes just as these firms are about to go public — or making the increase, as the Baucus-Grassley-Welch legislation does, only apply to firms that do go public — makes the tax increase hit small investors. Those investors are only now about to have the chance to share in the prosperity of these firms, which had been privately held. They would be the ones, as the SEC filing so matter-of-factly puts it, to be “negatively impacted.”

